Market Insight

Will the Environmental Bill deliver on environmental expectations?

February 4, 2021

The Environmental Bill is in the process of becoming law, but what are the main proposals and how is it going to affect planning and development going forwards. Ben Christian debates the implications.

The Environmental Bill 2019-21 finally awaits a Parliamentary debate to become law.

The Bill is being introduced to essentially replace the EU regulation under which the UK would have fallen prior to Brexit.

In the absence of this EU legislation, central government is now developing its own. But what will it mean for environmental protection and improvement in the UK? And most importantly for our clients, what will it mean in planning and development terms?

Whilst we wait for the Bill to progress through the final stages before becoming law, here are some of our thoughts on what we might expect.

Beware of an over-reliance on political will
A reoccurring theme that has cropped up time and again with the Environmental Bill, is the need for secondary legalisation which would set legally binding targets to be met for areas like air quality, water, biodiversity, waste and resources.

Without specific targets, the protection of the natural environment and people’s enjoyment of it, will rely on the Secretary of State (SoS), who will be responsible for setting long-term targets (<15 years).

That’s all well and good, provided the SoS at the time is ambitious and committed to the cause, setting targets to match. But if not, this could weaken the UK’s environmental standards and risks us falling behind those previously set by EU legislation.

Independent environmental watchdog?
The Bill will introduce the Office for Environmental Protection (OEP), to replace the Environment Protection role undertaken by the European Commission in the UK.

The OEP will be an independent body, acting objectively and impartially to monitor, report on and enforce environmental protection and enhancement of the environment.

Whilst in principle this sounds positive, providing the comfort of a body responsible for environmental accountability, the independence of this body and its ability to challenge government actions is questionable – particularly as the head of the OEP has been appointed by Government and the OEP’s funding is provided by the Government.

Summary of key proposals:

Waste and resources
The tension between economic growth and environmental harm is a well-recognised issue. The Bill proposes, amongst other things, to place responsibility on packaging producers for managing the costs of their own product waste, as well as placing charges on the use of resources such as single use plastics.

These are to be addressed through secondary legislation, and it is not yet clear how the balance will be struck in managing the need for resources with the impact of this on our environment.

Air quality
The environmental issue of poor air quality poses the most significant risk to public health in the UK, however, the Bill does not appear to address standards and targets for air quality. Rather, these are expected to be set through secondary legislation, which will include the requirement for a legally binding target for Particulate Matter (PM2.5) levels in ambient air.

As we have already eluded to above, this will require ambitious emission targets to be set, if we are to minimise the risk of falling behind EU standards.

The threat of water scarcity in the UK is a key area of concern and comparatively little progress has been made in addressing this, in recent years.

The Bill proposes to place responsibility on water providers to prepare joint proposals with two or more water providers, to identify measures that will improve the management and development of water resources.

How will this work in practice? The duty to cooperate in planning was such a success, that the latest White Paper proposes its removal as a requirement!

The Bill proposes to introduce biodiversity net gain as a condition on planning permission in England which has been long-anticipated, and we have seen some Local Planning Authorities (LPAs) reflect this already, building it in as an environmental policy requirement to their Local Plan.

Adopted policy with be key for LPAs if they are to be able to apply strong biodiversity net gain conditions to a planning permission.

The Bill also proposes a biodiversity net gain register which we expect will work in a similar way to SANG (Suitable Alternative Natural Greenspace), with sites expected to be maintained for at least 30 years. But what happens after 30 years?

The Bill also makes provisions for the applicant to purchase credits in order to meet biodiversity gain objectives – another planning tax in the making?

It is not yet clear how this will unfold in practice and viability of development schemes may be brought into question even further. Monitoring progress will be helped by the SoS reporting on this arrangement, including the amounts paid and how these payments have been used for securing biodiversity gains.

What does this all mean?
These are just some of the proposals set out within the Bill, and their success will rely heavily on well thought-out secondary legislation to ensure the protection and enhancement of our environment.

However, government policy will only be as strong as political will, which as we know, is influenced in so many ways.

Will the Government be brave enough to bring out secondary legislation targets that protect and enhance the environment in a proactive, constructive manner? Or will they simply make change for change’s sake?

Whilst this Bill is a step in the right direction towards protecting/enhancing the environment and seeking to become carbon neutral, detail will be key and this is somewhat lacking at the moment.